Environment Bill

Debate between Lord Thomas of Cwmgiedd and Lord Krebs

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

It is a pleasure to follow the noble Lord, Lord Rooker, and speak to the same amendments.

If the Bill is to be effective and to work, there are two main areas that need change. The first is clarity in relation to all the duties imposed because without clear duties, interlocking targets, interim targets and environmental plans, there is no effective concrete law that can be applied.

The second area where it has changed is enforcement. On Monday we had a useful debate on the independence of the OEP. Today, we turn to a second aspect of enforcement: the remedies that must be available if court proceedings are required. I very much hope that the independent strength and force of the OEP, together with clear duties set out in the Bill, will mean that recourse to courts is rarely necessary. However, that may be a pious hope because it is obvious that in this area there are immense conflicts of interest between those looking at the long term and those who seek to protect short-term or other interests. It seems to me, therefore, that an amount of litigation and enforcement action taken through the courts is inevitable.

I believe that view must be shared by the Government because why, otherwise, would they seek to constrain two important aspects of our common-law tradition? The first is to curtail the judicial function and the second is to curtail the discretion of the enforcer. I will deal with each aspect in turn but, unless changes are made to this part of the Bill, I entirely agree with everyone who has spoken about teeth. I will not attempt to describe the kind of teeth required, only to say that they must ensure that the Bill is not a long series of statements but will actually work for future generations.

I will now deal with each amendment in turn. I will deal with them briefly and in the order in which they are set out, not as the noble Lord, Lord Anderson, did, but I entirely agree with him that the critical amendment is Amendment 107. Amendment 105 changes the provision in the Bill that seeks to stop proceedings at a particular point in time being brought together. I find this very difficult to fathom. It is a very inefficient way of dealing with things, apart from being unjust. A court always likes to have all the relevant cases in front of it so that it can do justice. I ask the Minister: why do the Government wish to impede justice in this respect?

Amendments 106 and 107 can be taken together because they deal with the consequences of a decision by the court that what has happened has not been lawful. It seems to me very difficult to understand how a Government who believe in the rule of law—and I believe this Government firmly believe in the rule of law—wish to say that there are to be no consequences of a failure to comply with the law. That is very difficult to understand. However, much more serious, as the noble Lord, Lord Anderson, and others have pointed out, is the restriction on remedies. I have no doubt that the Department for Environment, Food and Rural Affairs and its very able lawyers are well aware that, from time to time, in several cases, judges have to deal with circumstances where the rights of other people are affected or there is a question about good administration. A judge then takes, for example, the prejudice to the rights of certain people on the one hand and balances it against the considerations on the other. That is an ordinary judicial function.

The Bill seeks to take that function away from a judge by imposing a restriction that requires a judge to be satisfied that if one single person would suffer hardship or prejudice to his rights, that means the court cannot do justice. I ask why. To my mind, it is a very undesirable attack on the way in which traditionally in this country we have approached matters of judicial review of government action. Until now, the judges have been trusted. It is a remarkable fact that, although there are complaints from time to time that far too many decisions are overturned on judicial review, the general effect of judicial review and the knowledge of the consequences of the remedies has been to improve good administration. The Government are successful in the overwhelming number—a percentage in the high 90s—of cases. I therefore wonder: what is driving the Government in this case to curtail the doing of justice by judges? It seems to me that there is no reason whatever for it. Surely, they can trust the judges on this aspect.

The last of these amendments is to the provision that seeks to curtail the right of the OEP to bring judicial review. Why take away its discretion? Do the Government not trust it? Surely, with an agency that is independent and to be chaired by a person of the calibre of the chairman designate, it is very difficult to understand why a Government wish to restrict its discretion for the future in bringing cases. They must also appreciate that if a judicial review has brought late, the judge can refuse a remedy. There is the lock of the discretion of the trusted OEP, with judicial discretion as a backstop. Why do the Government need more? We should trust our common-law traditions and leave matters to the discretion of the judiciary and to the discretion of the enforcer.

[Lord Krebs (CB) [V]]

My Lords, it is a great please to follow my noble and learned friend Lord Thomas of Cwmgiedd. I have put my name to Amendments 105, 106, 107 and 108, together with my noble friend Lord Anderson of Ipswich, my noble and learned friend Lord Thomas of Cwmgiedd and the noble Lord, Lord Duncan of Springbank. As a mere lay man on legal matters, I have little to add to the points made so beautifully by my noble friend and my noble and learned friend. However, it would be hard to argue against the view that the OEP, if it is to be an effective enforcement body, needs to be able to wield a big stick, even if the stick is rarely used. As it stands, the Bill gives the OEP a stick more akin to a matchstick than a knobkerrie, cudgel or shillelagh.

I am very grateful to the members of the Defra Bill team for having spent two sessions with my noble friend Lord Anderson and me trying to explain why Clause 37(8) biases the scales of justice against protecting the environment and in favour of commercial interests that might harm it. Three arguments were put forward. First, environmental review will take some time to reach the court stage as it passes through the two earlier stages of an information notice and a decision notice. Therefore, a third party may have already committed a great deal of resource to a project before it comes to court and it would be then unfair to stop the project in its tracks. Secondly, it was said that the OEP has wider powers than those covered by the European Commission and court and therefore needs to have its teeth blunted. Thirdly, in some cases, for instance planning approvals, giving environmental protection too much weight might cut across other government priorities.

I do not find these arguments at all persuasive. For instance, the argument that the environmental review process is so slow that a third party could be heavily committed begs the question of whether the design of the whole process needs to be reconsidered, as Amendment 108 proposes, rather than using Clause 37(8) as a sticking plaster to rectify the problem. As it stands, it is a bit like a manufacturer making a chair with legs that are too long and then selling it with a requirement that the customer cuts the legs down before use.

Defra officials have also produced a very helpful note summarising their arguments for this part of the Bill, as the noble Lord, Lord Anderson, referred to a few minutes ago. The note makes it clear that one of the Government’s concerns, perhaps even a major concern, is that the OEP might get in the way of the planning system. My noble friend Lady Boycott referred in earlier debates to instances where housing developments could cause serious harm to valuable habitats. Perhaps a powerful OEP would be able to discourage or stop these developments—but if it did, would that be a bad thing? It certainly would not be for the species that depend on those habitats for their survival.